RANGAMMA Vs. CHAIRMAN BANGALORE DEVELOPMENT

JUDGEMENT

(1.) THIS is a plaintiffs appeal. Plaintiff has preferred the above appeal challenging the correctness and legality of the judgment and decree dated 18-6-1996 passed in O. S. No. 5252 of 1980 by the learned 14th additional City Civil Judge, Bangalore, rejecting the plaint under Order ?, Rule 11 (d) of the Civil Procedure Code for want of notice under Section 64 of the Bangalore Development Authority Act.

(2.) PLAINTIFFS case is that her husband purchased the site bearing No. 1 formed in Sy. No. 5/2 of Jedahalli Village in the year 1959 under a registered sale deed dated 12-12-1959. It was a revenue site. Plaintiffs husband constructed the present existing building in the year 1971. In fact the Tahsildar P. U. C. issued a notice to the husband of the petitioner for unauthorised construction and for regularisation. Thereafter, the plaintiffs husband paid the necessary fine and got the construction regularised. Thereafter, khatha of the property was transferred in the name of the plaintiffs husband. Thereafter, the Corporation, City of bangalore assessed the property to tax. Tax is paid. Then, the Corporation made a survey of the property and confirmed the property in the name of the husband of the plaintiff. The plaintiffs husband got electrical connection to the premises. Name of the plaintiff, her husband and her sons are included in the voters' list giving their address as the schedule property. The defendant has nothing to do with the said schedule property and it does not come within the limits of the BDA at all. However, the engineer of the defendant issued a notice to the plaintiff as if she is constructing the house now. Without notice issued to the plaintiff orders have been passed by the said engineer. Therefore, the said order passed by the engineer of the BDA is one without jurisdiction, null and void, not binding on the plaintiff. Therefore, she filed the above suit for a decree of permanent injunction restraining the defendant from demolishing the schedule property or from interfering with her peaceful possession and enjoyment of the suit schedule property.

(3.) THE defendant-Bangalore Development Authority contested the suit by filing a detailed written statement. They denied all the allegations in the plaint. They denied the execution of the sale deed in the name of the plaintiffs husband, denied that the khatha of the property has been made out in his name, denied that he has been paying the taxes to the Corporation, denied any survey being conducted in respect of the schedule property and they have denied the documents produced by the plaintiff to substantiate their claim. It is their specific case that the schedule property is situated in Sy. No. 5 of Jedahalli Village which was notified by the then City Improvement Trust Board and the same has been acquired in accordance with law and possession of the entire sy. No. 5 has been taken over by the City Improvement Trust Board. Thereafter, the engineering section of the CITB has formed sites and has allotted sites to the general public. The land was notified for the formation of Industrial Corridor, Magadi Road-Chord Road Layout. The plaintiff nor her husband have any right, title or interest over the suit schedule property. In fact the BDA served the plaintiffs husband with notices under Sections 264-A and 404 of the City of Bangalore Improvement Act on 19-4-1975 and 4-8-1975 respectively. Despite the notices the plaintiffs husband refused to remove the unauthorised structures. Challenging the aforesaid notices the plaintiffs husband had filed O. S. No. 1583 of 1975 on the file of the learned Munsiff and the suit came to be dismissed with costs on 15-12-1979. The plaintiff has suppressed the aforesaid proceedings and as such she has not come to the Court with clean hands. The suit is also barred by principles of res judicata and the same is also not maintainable under Order 2, Rule 2 of the Civil Procedure Code. There is not provision for regularisation of unauthorised construction which is put up on the land belonging to the BDA and which has vested with the BDA after the completion of the acquisition proceedings. Further, they specifically contended as the plaintiff has not issued any statutory notice under Section 64 of the Bangalore Development Authority Act which is mandatory before filing of a suit, the suit is liable to be dismissed for want of statutory notice. Therefore, they prayed for the dismissal of the suit.